People v. Henry

Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered April 4, 2013, upon a verdict convicting defendant of the crimes of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the fourth degree.

Defendant was arrested after he sold crack cocaine to a confidential informant (hereinafter the Cl) in a “buy and bust” operation. Following a jury trial, he was convicted of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the fourth degree, but he was acquitted of a charge of criminal possession of a controlled substance in the third degree. County Court sentenced him, as a prior felony offender, to an aggregate prison term of eight years, followed by three years of postrelease supervision. He appeals, and we affirm.

Defendant contends that, because he was acquitted of the charge of criminal possession of a controlled substance in the third degree, which requires proof of possession of a narcotic drug “with intent to sell it” (Penal Law § 220.16 [1]), the verdict finding him guilty of criminal sale of a controlled substance in the third degree (see Penal Law § 220.39 [1]) is factually inconsistent and, therefore, against the weight of the evidence. He concedes, however, that the verdict is not repugnant. In such a situation, the Court of Appeals has noted that “it is imprudent to speculate concerning the factual determinations that underlay the verdict because what might appear to be an irrational verdict may actually constitute a jury’s permissible exercise of mercy or leniency” (People v Horne, 97 NY2d 404 ,

Here, police officers searched the Cl and his vehicle prior to the transaction, provided him with prerecorded buy money and kept him under surveillance. Defendant arrived at the meeting place that had been arranged during a controlled phone call and entered the Cl’s vehicle. Upon hearing the Cl state the previously agreed-upon phrase indicating completion of the sale, the officers rapidly approached the vehicle and placed defendant and the Cl into custody. The prerecorded buy money was found on defendant’s person and the Cl had a plastic baggie containing more than seven grams of crack cocaine. Defendant was later videotaped admitting to possession of the crack cocaine and giving it to the Cl in exchange for money. Despite defendant’s denial at trial that he sold drugs and his claim that the Cl gave him money to pay off a debt, there was ample evidence supporting the verdict and, deferring to the jury’s ability to view the witnesses and observe their demeanor, we find no basis to disturb the verdict as against the weight of the evidence, notwithstanding its logical inconsistency (see People v Barrow, 103 AD3d 745 , 745-746 [2013], lv denied 21 NY3d 941 [2013]; People v Conyers, 48 AD3d 362 , 362-363 [2008], lv denied 10 NY3d 933 [2008]).

Nor do we find any error by County Court in modifying its Sandoval ruling. The court originally limited the People to inquiring into whether defendant had been convicted in 2003 of a class D felony without reference to the underlying facts. Nevertheless, defense counsel referenced the fact that the conviction was related to cocaine possession during his opening statement and claimed that defendant underwent treatment and “does not use cocaine anymore.” The People thereafter requested that the Sandoval ruling be modified so as to allow them to question defendant about the cocaine possession, but County Court reserved decision pending defendant’s direct testimony. On his direct examination, defendant portrayed the conviction as only having been related to his use of cocaine and testified that he “went to rehab and outpatient program for [his] cocaine.” Rather than being solely related to his use of cocaine, however, the underlying facts of the conviction reflect that defendant had possessed over 14 separate twists of crack cocaine at the time of his arrest, he attempted to conceal the drugs in his anus when confronted by the police, and he was found to be in possession of a notebook converting grams to ounces. Inasmuch as defendant affirmatively put certain facts about the prior conviction before the jury, but did so “in a

Defendant also contends that it was improper for the People to question him on cross-examination regarding why he had waited until trial to first make his claims that the Cl had given him the money in repayment of a debt and that the police had then coerced his videotaped statement. Because defendant failed to object to this cross-examination at the time, his contention on appeal is not preserved for our review (see CPL 470.05 [2]; People v Rebollo, 107 AD3d 1059 , 1061 [2013]; People v Houck, 101 AD3d 1239 , 1240 [2012]). In any event, the People’s questions did not implicate defendant’s right to remain silent inasmuch as, after having received his Miranda warnings, defendant did not remain silent. Instead, he proceeded to relate his version of events (compare People v De George, 73 NY2d 614 , 617 [1989]). Accordingly, the People’s questions concerning defendant’s failure to include his claim concerning the money in his statement to the police, as well as his failure to claim that his statement was coerced, constituted proper impeachment (see People v Savage, 50 NY2d 673 , 677-679 [1980], cert denied 449 US 1016 [1980]).

Finally, we are unpersuaded that defendant was denied the effective assistance of counsel. The elicitation of evidence that opened the door to modification of the Sandoval ruling was clearly a strategic choice by counsel, and defendant’s disagreement in hindsight with that strategy does not establish that he received less than meaningful representation (see People v Flores, 84 NY2d 184 , 187 [1994]; People v Odom, 53 AD3d 1084 , 1087 [2008], lv denied 11 NY3d 792 [2008]; People v Salaam, 46 AD3d 1130 , 1132 [2007], lv denied 10 NY3d 816 [2008]). The failure to object to testimony regarding the Cl’s use of the prearranged phrase to indicate that a sale had been completed did not constitute ineffective assistance of counsel, because this testimony simply provided background information as to

Peters, P.J., Lahtinen and McCarthy, JJ., concur.

Ordered that the judgment is affirmed.